Date: 20040512
Docket: T-542-03
Citation: 2004 FC 692
BETWEEN:
GLENDA VALAIR
APPLICANT
- and -
ATTORNEY GENERAL OF CANADA
RESPONDENT
INTRODUCTION
[1] Glenda Valair, ("the applicant"), seeks judicial review of the March 6, 2003 decision of the Canadian Human Rights Commission (the "Commission"), dismissing, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act (the "Act"), her complaint in which she alleged her employer, the Royal Canadian Mounted Police (the "RCMP") had discriminated against her and harassed her on the basis of her sex contrary to sections 7 and 14 of that Act.
[2] The material part of the Commission's March 6, 2003 decision (applicant's record, page 3.58) reads:
Before rendering its decision, the Commission reviewed the report disclosed to you previously and any submission(s) filed in response to the report. After examining this information, the Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because:
• having regard to all the circumstances, no further inquiry is warranted. The evidence suggests that the decision not to grant the complainant the position was related to it being developmental and not related to her sex.
[3] Paragraph 44(3)(b) of the Act reads:
| (3) On receipt of a report referred to in subsection (1), the Commission . . . (b) shall dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
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(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission_: . . . b) rejette la plainte, si elle est convaincue_: (i) soit que, compte tenu des circonstances relatives à la plainte, l'examen de celle-ci n'est pas justifié, (ii) soit que la plainte doit être rejetée pour l'un des motifs énoncés aux alinéas 41c) à e).
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BACKGROUND
[4] The applicant joined the RCMP as a regular member in 1978. In 1993, she started working, and since then has continued to work, in the Kelowna City Detachment (the RCMP provides municipal police services in B.C. pursuant to an agreement between the province and the RCMP after approval by the Governor in Council).
[5] From late 1997 to October 1999, she was selected and held the position of investigator in the Child Abuse section and after that posting returned to the General Investigations section in the Kelowna Detachment.
[6] The Child Abuse section position was again posted for competition in October 2000. She applied and was interviewed on August 9, 2000, by a selection board consisting of three NCOs. She ranked second; the position was offered to another member of the RCMP.
[7] In her complaint to the Commission, filed September 30, 2001, she alleged she was denied the position in the Child Abuse section because she had been discriminated on account of her sex.
[8] It was later discovered, during the Commission' investigation process, she scored 114 points; the male constable who filled the position scored 112 and had less experience than her.
[9] The harassment aspect of her complaint takes its roots in the August 9, 2000 interview; it centres on the several questions she was asked by the selection board on how many search warrants she had executed during the past year. She says she answered "perhaps a couple of times" but asked for permission to check her files to be certain but was told by the selection board that would not be necessary.
[10] On December 11, 2000, Corporal Johnston informed her he had been asked by Superintendent Harrison to investigate and report to him on the selection board interview she had participated in on August 9, 2000. He wanted to access her search warrant files. She says she wanted to know why and was given no answer.
[11] About five days later, she was informed by another Regular Force member rumours were circulating a code of conduct investigation was being conducted into whether she had lied to the selection board on the number of search warrants she had executed during the previous year; rumour was that she had told the selection board she had executed ten search warrants.
[12] In her affidavit, she recites she was very upset and on December 20, 2000, she spoke with the senior NCO who allegedly grabbed her by the arm, closed the office door and stated "[W]ait, we have to discuss this further" and then informed her he was aware of the investigation and told her an inspector had made a complaint against her. She retained legal counsel.
[13] She recites speaking directly to Superintendent Harrison and being told she was not being investigated. However, she felt she was and not really being told why.
[14] She wanted all issues concerning her future to be put on the table during an ADR session which was held but apparently disintegrated after Superintendent Harrison told her she had lied during her selection board interview, a fact which she vehemently denies.
THE INVESTIGATOR'S REPORT
[15] The Commission appointed Dale Akerstrom to investigate the complaint. After his investigation was completed, he prepared a nine page report dated November 25, 2002. He reported on both aspects of the applicant's complaint: allegation 1 which he identified as "less-qualified male candidate selected for Child Abuse Investigation position" and allegation 2 as "harassment during the board process".
[16] On allegation 1 he stated the RCMP agreed the applicant scored higher on the competition than the male member selected. However, the RCMP stated this selection was not discriminatory as the position was a "rotational/developmental" assignment which the applicant had already occupied during 1997 to 1999. In these circumstances, the RCMP stated the assignment would go to qualified candidates who had not already occupied the position before it would go to a candidate who had previously occupied it.
[17] The investigator stated the applicant replied the competition took place in August 2000 and the policy the RCMP referred to was only established in April 2001. She maintained before the investigator there was no policy at the time of the competition preventing her from obtaining the position a second time and pointed to the fact Constable Johnston had occupied the Child Abuse section position twice, once in the period 1994 to 1996 and again in 1997 when she first applied for the position.
[18] Mr. Akerstrom appended the RCMP policy statement on rotational transfers to his report and quoted extracts from it. He also described the several interviews he conducted with the members of the selection board and others about the policy and the scores the applicant received as well as the support and encouragement she had been provided by her superiors when she applied for the Child Abuse Investigation position in 2000.
[19] After detailing the evidence, the investigator set out his analysis stating the applicant had made out a prima facie case of discrimination on the basis of sex and the issue became whether or not the RCMP had legitimate non-discriminatory reasons for selecting the male candidate over Glenda Valair.
[20] He concluded the RCMP's defence was not supported and the complainant's prima facie case stood.
[21] The investigator then tackled the harassment allegation. He first set out the applicant's allegations and the RCMP's response which was:
(1) the selection board questioned the truthfulness of the applicant's response to the question about the number of warrants she had executed;
(2) the RCMP maintained the applicant told the selection board she had executed fifteen warrants "a number that was extraordinarily high".
(3) The RCMP stated that the Board members sought to verify this number by "asking the complainant to provide details of the warrants. The complainant instead went on medical leave".
[22] The investigator then outlined the applicant's rebuttal to the RCMP's position. He states at paragraph 24 of his report (applicant's record, page 3.36):
24. In her rebuttal, the complainant maintains that she told the board members that she had executed two warrants. She refers to the board interview notes, specifically Cpl. Jordan's notes, which have both a 2 and a 15 recorded for this question. She further states that "other members and Supt. Harrison have told me that I said anywhere from 10 to 25 search warrants".
[23] The investigator then summarized the interviews he conducted with the selection board members and reviewed their notes of the interview with Glenda Valair. He also summarized interviews he conducted with the Police Records Coordinator at the Kelowna Detachment. He also interviewed the senior NCO and the applicant's supervisor about the applicant's motivation.
[24] After setting out this evidence, the investigator dealt with his conclusions on harassment in one paragraph of his report. Paragraph 41 of his report reads (applicant's record 3.38):
41. With regard to the second allegation, that the complainant was harassed in the course of the Board and subsequent events, on the balance of probabilities, the evidence does not support the complainant's allegation. The Board member's [sic] consistent evidence is that the complainant's answer to the question on the number of warrants she had done was inordinately high, and this prompted them to seek to confirm the number. The evidence does not support that the complainant was harassed in this effort on the basis of her sex, as this process was also followed for the Francophone male member whose answer to one of the questions was disputed. With regard to the complainant's interaction with S/Sgt. Wylie on 20 December 2000, the evidence, again on the balance of probabilities, does not support that the complainant was harassed on the basis of sex. S/Sgt. Wylie's actions in the circumstances appear to be reasonable and non-discriminatory. [emphasis mine]
[25] He made the following recommendation:
42. It is recommended, pursuant to section 47 of the Canadian Human Rights Act, that the Commission appoint a conciliator to attempt to bring about a settlement of the complaint, because the evidence supports that the complainant was not selected for the Child Abuse position even though she was the most qualified candidate, and the selected candidate was male.
THE SUBSEQUENT PROCESS
[26] From the certified record filed by the Commission in response to a Rule 317 Federal Court Rules request, it appears the following transpired after the parties were invited by the Commission to comment on the investigator's report. It also appears that during the investigation and subsequent process the applicant chose not to retain legal counsel.
[27] First, the RCMP made submissions which were contained in a two page December 17, 2002 letter forwarded to the Commission by Dieter Schachhuber who also attached, as appendix A to his letter, a copy of an in-depth four page response prepared by Superintendent Harrison.
[28] The RCMP maintained its position the applicant's non-selection to the position in the Child Abuse (Investigations) section was due to the fact she had already served in a similar position which was designated as being "rotational or developmental" and was not eligible for a second term unless another suitable applicant who had not had this exposure could not be identified.
[29] It was stressed that "a transfer into the « rotational or developmental position » is temporary (two years in nature). The purpose of the transfer philosophy is to provide a developmental learning experience to as many constables as possible".
[30] Mr. Schachhuber stated Const. Valair was well aware the selection process was for a rotational/developmental position. He referred to the investigator's report where the applicant was quoted as telling the investigator in regards to the Child Abuse position "I realize that this has been a developmental position, but I maintain a strong interest and feel that I could contribute". Mr. Schachhuber expressed to the Commission the RCMP was of the view the process used for the selection of candidates for the rotational developmental position was completed fairly. All potential candidates were assessed by a board of senior employees" and that "Superintendent Harrison advised that he excludes any person previously holding designated positions in favour of another qualified candidate who had not".
[31] Mr. Schachhuber concluded (respondent's record, page 24):
One final point that must be addressed is the issue of Cst. Valair's attempt to mislead the assessment board by telling the board members that she had executed 15 search warrants when in reality she had completed only two. Regardless of Cst. Valair's final score and the issue of whether or not she had previously held the Child Abuse position, she would have been removed from the competition when it was established that she had been untrue with her answers to the board. Honesty is one of the six core values of the RCMP and any deviation from this will not be tolerated.
[32] The applicant responded to the investigator's report on December 19, 2002. Her letter contains seven paragraphs.
[33] The first three paragraphs of her submission relate to the Child Abuse position. She made the point that in 1995 when she first applied for the position of Child Abuse Investigator, she was not selected despite the fact she had more seniority than the person who was and this person had not been at the Kelowna detachment for one year prior to being considered for the position which was contrary to the Superintendent's policy. She rebutted a statement in the report, attributed to Sgt. Jordan, about women being more frequently chosen in Child Abuse Investigation positions than men by pointing out that prior to 1997, there had been only one female member in that position. She corrected a statement attributed to Constable Johnston he held the Child Abuse position only for a few months in late 1997.
[34] The remaining four paragraphs of her comments on the report deal with harassment. She corrected a statement attributed in the investigator's report to S/Sgt. Wylie about taking an unusual number of sick days in the period August to December 2002. She pointed out she had suffered a back injury. She provided her record of leaves.
[35] The balance of her letter reads (respondent's record, page 20):
5. S/Sgt. Wylie's accounts of events is a complete contradiction to myself and therefore that issue can only be resolved by the conciliator or tribunal hearing the matter.
6. There is evidence, if believed, that I was harassed and, therefore that matter should also be dealt with by the conciliator or the tribunal hearing the matter.
7. The matter of the harassments is intertwined with the gender discrimination and, therefore, should be dealt with by the conciliator or the tribunal hearing the matter and should not be determined by the investigator and in his report.
[36] On January 8, 2003, Mr. Schachhuber wrote to the investigator with reference to the investigator's correspondence of December 30, 2003, "in which you attached the comments of Cst. Glenda Valair" [emphasis mine]. He rebutted the comments the applicant had made about filling the position in 1995 by pointing out that at that time the one-year qualifying position was not in place. He reiterated the Child Abuse Investigation position is a developmental position and Cst. Valair was not eligible for placement because another suitable candidate had been identified. He concluded by listing all of the female appointments into the Child Abuse Investigation position.
[37] On January 9, 2003, the applicant wrote to the investigator in response to his letter of December 30th and "Superintendent Harrison's four-page document" [emphasis mine]. She stated Superintendent Harrison described the Detachment policy written under his supervision eight months after her selection board and "would have you believe that this policy was already in practice. I disagree with Superintendent Harrison and, therefore, the matter should be dealt with by the conciliator or the tribunal hearing the matter". She notes Superintendent Harrison stated there was no doubt in his mind that "Glenda Valair lied to the Board". The applicant wrote "this statement is a complete contradiction to myself and therefore that issue can only be resolved by the conciliator or tribunal hearing the matter".
[38] In her affidavit filed in support of her judicial review application, Glenda Valair noted Superintendent Harrison's statement that there was no doubt in his mind she had lied to the Board. She states that on January 17, 2003, she travelled to Vancouver and underwent a polygraph examination which specifically addressed whether she had lied to the selection board. She states "I was found to be truthful. Upon obtaining the test results I forwarded same to Mr. Akerstrom of the Canadian Human Rights Commission".
[39] In her memorandum to the Court, she indicated the RCMP refused to enter into conciliation.
THE APPLICANT'S GROUNDS FOR REVIEW
[40] In her notice of application, counsel for the applicant included several grounds for review which he did not pursue in his memorandum. In his memorandum and in argument, counsel for the applicant concentrated on the following four grounds.
[41] First, he stated the Commission breached principles of natural justice and procedural fairness by ignoring the findings of its own investigator when it concluded the evidence suggested the decision not to grant the complainant the position was related to it being developmental and not related to her sex.
[42] Counsel reviewed the Investigation Report and stated the Commission ignored witnesses and documentary evidence that had been accepted by the investigator indicating sexual discrimination had occurred. Counsel for the applicant recognized while the Commission is not obligated to accept the recommendation of its investigator, it was unreasonable for the Commission to ignore the factual findings of its own investigator it being recognized the investigator had seen and heard the witnesses, and is best equipped in the circumstances to sort through the evidence.
[43] The second ground advanced by counsel for the applicant relates to a breach in fairness. The appellant says in that the Commission relied upon documentation which had not been disclosed to the applicant.
[44] Specifically, applicant's counsel points to the non-disclosure of Mr. Schachhuber's submission letter of December 17, 2002, and to the non disclosure of Mr. Schachhuber's cross-submissions dated January 8, 2003. He states it was only after the applicant received documents pursuant to her Rule 317 request she found out about these two documents.
[45] Third, the applicant's counsel argues the Commission erred by failing to admit into evidence the results of the polygraph test. As such, he argues the investigation of the Commission was deficient. The Commission, it is argued, did not investigate adequately the allegation of the applicant that officers of the RCMP harassed her or caused her to suffer grave psychological injury or injury to her reputation and career by falsely claiming she had lied during the course of the interview.
[46] Finally, the applicant argues she was denied fairness because the Commission failed to make any mention of her second allegation - that of harassment. He argued the only reasonable inference to be drawn from the total absence of reasons on the point is that this second allegation was either overlooked or ignored by the Commission.
ANALYSIS
[47] The central theme of the applicant's attack on the Commission's decision is lack of procedural fairness in various forms: uneven disclosure, failure to give reasons in respect of her harassment complaint, ignoring the finding of its own investigator on the issue of being denied the Child Abuse Investigation position and failure to account for the polygraph evidence.
[48] The focus of these breaches is on the Commission's process and not with the neutrality and thoroughness of the investigator's investigation and report as developed in a line of cases stemming from Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.) except perhaps, as argued by the applicant, the investigator's failure to account for the polygraph test filed with him after the disclosure process had been completed. I note the polygraph results were not before the Commission when it made its decision.
[49] Before dealing with the applicant's grounds for review, I refer to the decisions of Justice Décary in Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.) and in Bourgeois v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 1655 (F.C.A.) as well as Justice Evans' decision in Murray v. Canada (Canadian Human Rights Commission), [2003] F.C.A. 222, on the applicable standards of review in respect of a decision by the Commission to dismiss a complaint pursuant to paragraph 44(3)(b) of the Act.
[50] In Bell Canada, supra, Justice Décary stated at paragraph 38:
¶ 38 The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", . . . which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority... or for an outright dismissal ... involve in varying degrees questions of fact, law and opinion ... but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission. [emphasis mine]
[51] In Bourgeois, supra, Justice Décary stated at paragraph 3 of his decision:
¶ 3 MacKay J. was of the view, and rightly so, that the standard of review of a decision of the Commission to dismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice or other procedural unfairness or unless the decision is not supportable on the evidence before the Commission. He came to the conclusion that the circumstances were not such as to warrant the intervention of the Court. [emphasis mine]
[52] In Murray, supra, Justice Evans stated the following at paragraph 4:
¶ 4 We can agree that the investigation and the report have some shortcomings and that it is unacceptable that the investigation and report took four years to complete. Nonetheless, we are not satisfied that the investigation was so defective as to constitute a breach of the duty of fairness (see Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.)), or that it was patently unreasonable for the Commission to have dismissed the complaint on the basis of the material before it. [emphasis mine]
[53] Since the decisions of the Supreme Court of Canada in Radulesco v. Canada (Canadian Human Rights Commission), [1984] 2 S.C.R. 407, and Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879, it is settled law the Commission must observe procedural fairness in coming to decisions.
[54] In L'Acadie, supra, Justice Sopinka quoted Radulesco, supra, to the effect the Commission had acknowledged procedural fairness required a complainant to be provided with an opportunity to make submissions, at least in writing, before any action was taken on the basis of the report and in order that such submissions be made on an informed basis, it was required to disclose the substance of the case to the parties prior to its decision.
[55] In Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854, Justice LaForest stated the Commission was not an adjudicative body and its job was to decide whether an inquiry was warranted having regard to all the facts. He characterized the Commission's role as an administrative and screening body with no appreciable and adjudicative role.
[56] I now deal with each of the grounds advanced by the applicant.
[57] Applicant's argument on uneven disclosure raises a serious concern because there is a steady line of cases, for example, in the Federal Court of Appeal's decisions in Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3, and in Hutchinson v. Canada (Minister of the Environment), [2003] F.C.A. 133, holding uneven disclosure can constitute a breach of procedural fairness.
[58] The applicant's complaint about uneven disclosure was not covered off in her affidavit but I am prepared to assume she did not find out about Mr. Schachhuber's two page December 17, 2002, submission, commenting on the investigator's report, nor his January 8, 2003 cross-submission commenting on her December 19, 2002 submission which contained her observations in the investigator's report.
[59] On the facts of this case, I conclude the applicant's allegation of uneven disclosure has not been made out.
[60] Mr. Schachhuber's two-page letter to the Commission attaching Superintendent Harrison's four-page in-depth analysis of what, from the RCMP's perspective, was wrong with the investigator's report basically summarizes the RCMP's defence which was made known to the applicant during the investigator's investigation; it provides nothing new. The applicant had an opportunity to comment on Superintendent Harrison's four-page commentary and did so on January 9, 2003.
[61] Neither party was provided with further cross-disclosures. As I see it, none were required because no new facts were raised in the initial cross-submissions.
[62] The applicant's second ground involves a failure to give reasons for dismissing her harassment complaint. The case law does not support the applicant's position.
[63] The investigator found her harassment complaint had not been made out. She had and did comment on the investigator's report.
[64] This case is similar to one recently decided by the Federal Court of Appeal in Hutchinson, supra, where an issue of harassment had been alleged and where the complainant alleged the Commission did not deal with her allegations of harassment. Justice Pelletier wrote the following at paragraph 62 and 63 of his reasons for judgment:
¶ 62 The respondent also claims that the Commission did not deal with her allegations of harassment which she framed as follows in her complaint (Appeal Book, at page 60):
In addition to my struggle to obtain a safe working environment, I have been the recipient of comments about my disability. For example, in a meeting in September 1995 the manager of the Pollution Control Division stated "Read my lips, Charlotte, your office is on the fourth floor", although I had informed him working there would make me sick. He also stated that if they had known about my illness, they would [not] have hired me in their branch, and that if I left my position they would probably not fill it. He further commented that I had no sick leave left and should not expect to be paid, although I was entitled to apply for, and later was granted, advanced sick leave.
¶ 63 These allegations were discussed in the investigation report. The investigator concluded that the remark with respect to "Read my lips" was made in frustration in the context of a meeting where the respondent's manner apparently provoked a reaction. The remark about not hiring the respondent was made in the context that one would not generally place a person with environmental sensitivity in a job which required her to attend at various industrial sites. As for sick leave, the investigator was not able to determine if the remark was made and, in any event, the respondent was given advance sick leave. In dismissing the complaint, the Commission must be taken to have given effect to the investigator's assessment of the merits of the harassment complaint. [emphasis mine]
[65] The point made by Justice Pelletier in Hutchinson, supra, that the Commission must be taken to have given effect to the investigator's assessment on the merits of the harassment complaint is really saying, in the circumstances, the investigator's report constitutes the Commission's reasons for dismissal. (See also Justice Sopinka's decision in L'Acadie, supra, at pages 902 and 903, as well as Justice Décary's views in Mercier, supra, at page 15, where he held, in a case where the Commission rejects an investigator's recommendation, it may be presumed it did so on the basis of comments received from the responding party).
[66] I do not find substance to the applicant's third argument which relates to ignoring the investigator's findings when the Commission concluded the evidence was to the effect the reason she was not chosen for the Child Abuse Investigator's position had nothing to do with her sex but had everything to do with the fact the position was a developmental/rotational one.
[67] The applicant concedes, as she must, the Commission is not obligated to accept an investigator's report.
[68] The Commission must, as the Act dictates, come to its own view. That is the very reason procedural fairness dictates disclosure of the investigator's report and the obligation to provide an opportunity to comment on that report.
[69] On the record before me, it cannot be said the Commission's decision on this point breached the requirements of paragraph18.1(4)(d) of the Federal Court Act, namely, the Commission's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.
[70] The words of Justice Décary in Bourgeois, supra, at paragraph 6, seem apt:
¶ 6 In the case at bar, the investigator was confronted with conflicting reports as to what had actually happened. He preferred the version brought forward by the Bank and by Ms. Guillemette to that of the appellant. He relied, more particularly, on the evidence of seven trainees who had been in the same group as Mr. Bourgeois. These co-trainees could simply not confirm the version of events given by the appellant. It may well be that a full inquiry would have resulted in a different finding, but that is a risk inherent in any screening process. I understand Mr. Bourgeois' frustrations in having been denied the opportunity of a full inquiry, but in the circumstances the Commission cannot be blamed for not having gone further.
[71] The applicant cannot succeed on her last point which alleges an evidentiary error in failing to admit the polygraph evidence or a failure to investigate adequately the issue of the number of warrants executed.
[72] My review of the investigator's report convinces me the issue of the number of warrants executed by the applicant was thoroughly investigated by the investigator (see paragraphs 21 to 31 of the investigator's report). Based on this evidence, he concluded that on the balance of probabilities, the evidence did not support the complainant's allegation of harassment.
[73] In the circumstances, the investigator had no obligation to receive the polygraph evidence which can be characterized as new evidence adduced after the Commission's disclosure had lapsed.
[74] More fundamentally, however, I agree with counsel for the respondent the polygraph evidence was irrelevant or not material to the investigator's finding on harassment although it is correct to say her truthfulness about the number of warrants issued was advanced by the RCMP to the investigator.
[75] Coupling paragraphs 23, 28, 29 and 30 of the investigator's report with paragraph 41 expressing his conclusion, it is apparent to me the investigator did not make any finding the applicant had lied or not lied in determining her harassment allegation had not been made out.
[76] He recommended a dismissal of the harassment aspect of her complaint because he was satisfied this same verification process she had undergone was "also followed for the Francophone male member whose answers to one of the questions was disputed". According to the investigator, the verification process in her case did not constitute harassment because the RCMP was simply checking out a matter which had arisen during the selection process. I cannot see in the investigator's report any finding the applicant had lied. In view of his reasoning on the harassment issue, it was not necessary for him to do so.
[77] Indeed, the applicant's comments on the investigator's report do not address this issue. It was only when she saw Superintendent Harrison's comment at paragraph 5 of his rebuttal she, quite naturally, replied to the Commission on January 9, 2003, stating Superintendent Harrison's statement she had lied was completely contrary to her statement and therefore the issue could only be resolved by a conciliator or tribunal. It was Superintendent Harrison's statement that prompted her to obtain the polygraph test.
[78] In the circumstances, I conclude the applicant has not satisfied me either the Commission or the investigator erred in not dealing with the polygraph evidence.
[79] Having said this, I have some sympathy for the applicant's desire to clear the record through the polygraph test. In my view, the RCMP, through the responses from Mr. Schachhuber and Superintendent Harrison, unnecessarily magnified a point on which the investigator had made no determination.
[80] For all of these reasons, this judicial review application is dismissed without costs.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
May 12, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-542-03
STYLE OF CAUSE: Glenda Valair v. Attorney General of Canada
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 18, 2004
REASONS FOR : Lemieux, J
APPEARANCES:
Mr. Larry W.O. Smeets FOR APPLICANT
Ms. Wendy Divoky FOR RESPONDENT
SOLICITORS OF RECORD:
Smeets Law Offices FOR APPLICANT
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver Regional Office